The United States Supreme Court will not let Americans challenge a provision in a foreign intelligence law that lets the federal government secretly eavesdrop on the intimate communications of millions of Americans.

On Tuesday, the top justices in the US said the country’s
highest court will not hear a case in
which Amnesty International and a slew of co-plaintiffs have
contested a provision of the Foreign Intelligence Surveillance Act
of 1978, or FISA, that lets the National Security Agency silently
monitor emails and phone calls [.pdf].

Under the FISA Amendments Act of 2008 (FAA), the NSA is allowed
to conduct electronic surveillance on any US citizen as long as
they are suspected of conversing with any person located outside of
the United States. That provision was scheduled to expire at the
end of 2012, but Congress voted to re-up the bill and it was put
back on the books for another five years.

Along with human rights workers and journalists, Amnesty
International first challenged the FAA on the day it went into
effect, arguing that the powers provided to the NSA under the FISA
amendments likely puts the plaintiffs and perhaps millions of other
Americans at risk of surveillance. Now years later, though, they
are finally being told that they cannot challenge the law that,
while meant to collect foreign intelligence, puts every person in
the country at risk of being watched.

“Under the FAA, the government can target anyone — human
rights researchers, academics, attorneys, political activists,
journalists — simply because they are foreigners outside the United
States, and in the course of its surveillance it can collect
Americans’ communications with those individuals,” the American
Civil Liberties Union wrote on behalf of the plaintiffs in a legal
brief filed last year with the court.

Amnesty, et al have been pursuing an injunction against the NSA
in their lawsuit, which names former NSA-Chief James Clapper is a
co-defendant. Because the plaintiffs cannot prove that they’ve
actually been targeted under the FAA, however, the case is been
stalled endlessly.

In last year’s filing, the ACLU acknowledged that an appeals
court panel agreed in 2011 that “plaintiffs have good reason to
believe that their communications, in particular, will fall within
the scope of the broad surveillance that they can assume the
government will conduct,” and the full body of US Court of
Appeals for the Second Circuit later refused the government’s
attempts to have them reconsider.

“But instead of allowing the case to be heard on the merits,
the Obama administration asked the Supreme Court to review the
case,” the ACLU’s Ateqah Khaki, wrote. “Our brief urges the
Court to affirm the appeals court’s decision.”

On Tuesday, however, the Supreme Court dismissed the claims that
the plaintiffs were being watched under the FAA. Amnesty and others
had argued that the presumed surveillance they were subjected to
has caused them to go out of their way to maintain working
relationships with clients, forcing them to travel abroad to
communicate without the fear of being monitored.

In the suit, the plaintiffs have said that because they
communicate “with people the Government ‘believes or believed to
be associated with terrorist organizations,’ ‘people located in
geographic areas that are a special focus’ of the Government’s
counterterrorism or diplomatic efforts, and activists who oppose
governments that are supported by the United States
Government,” they’ve undertaken “costly and burdensome
measures” to protect the confidentiality of sensitive
communications.

“In sum, respondents’ speculative chain of possibilities does
not establish that injury based on potential future
surveillance,” the court ruled. “[R]espondents’
self-inflicted injuries are not fairly traceable to the
Government’s purported activities under [the FAA] and their
subjective fear of surveillance does not give rise to
standing.”

But only last year, Amnesty et al were given good reason to
worry right from the NSA: Senators Ron Wyden (D-OR) and Mark Udall
(D-CO) sent a
letter to the Office of the Inspector General of the
Intelligence Community asking, “how many people inside the
United States have had their communications collected or reviewed
under the authorities granted by section 702” of the FISA
Amendment Act (FAA). The NSA responded by rejecting the lawmakers’
request, and said a “review of the sort suggested would itself
violate the privacy of US persons.”

“All that Senator Udall and I are asking for is a ballpark
estimate of how many Americans have been monitored under this law,
and it is disappointing that the Inspectors General cannot provide
it,” Sen. Wyden told Wired’s Danger Room at the time. “If no
one will even estimate how many Americans have had their
communications collected under this law then it is all the more
important that Congress act to close the ‘back door searches’
loophole, to keep the government from searching for Americans’
phone calls and emails without a warrant.”

In the court’s majority opinion, five justices even added that
the government’s ability to wiretap Americans doesn’t begin and end
with FISA, either. "The Government has numerous other methods of
conducting surveillance, none of which is challenged here,”
they ruled.

“Because respondents do not face a threat of certainly
impending interception” under FISA, “the costs that they
have incurred to avoid surveillance are simply the product of their
fear of surveillance,” the court told the plaintiffs.

Journalists Chris Hedges and Naomi Klein joined Amnesty in the
case, along with Joanne Mariner, the Terrorism and Counterterrorism
Program Director at Human Rights Watch, attorney Sylvia Royce and
others.